UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5332

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
JOHN ANDREW MUDLOCK,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:10-cr-00115-WO-1)

Argued:

March 21, 2012

Decided:

June 19, 2012

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,

Greensboro, North Carolina, for Appellant.
Michael Francis
Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
ON BRIEF: Ripley Rand, United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
The grand jury indicted John Andrew Mudlock for knowingly
possessing
issued

firearms

by

in

contravention

Tennessee

court,

922(g)(8) and 924(a)(2).

in

of

restraining

violation

of

18

order
U.S.C.

Mudlock filed a motion to dismiss

the indictment, alleging that, as applied to him, 922(g)(8)

was unconstitutional under the Second Amendment.
court

denied

guilty
Mudlock

the

motion.

verdict.
to

Mudlock

42

The
months

challenges

After

district

trial,
court

imprisonment.

the

district

the

The district

jury

returned

subsequently
In

this

courts

sentenced

timely

appeal,

constitutionality

determination, several evidentiary rulings, and aspects of his

sentencing.

For the reasons that follow, we affirm.

I.
A.
Early
telephoned
Carolina,

in
the
and

the
911
hung

morning

on

dispatcher
up.

When

January
in

the

10,

Rockingham
911

operator

2010,

Mudlock

County,

North

called

back,

Mudlock stated that he was going to kill himself and that he

would shoot any law enforcement officer who approached his home.
He stated that he had enough weapons to take out anybody that
came through the door.

After an all-day standoff, at around 8:00 p.m., officers

fired

tear

surrender.

gas

into

Mudlocks

home,

which

caused

him

to

Officers handcuffed Mudlock, but when his hands were

temporarily freed because of a problem with the handcuffs, he

attempted to grab one of the officers guns.

The government

played a video of this incident at trial.

After

the

officers

secured

Mudlock,

Detective

Strader obtained a search warrant for his home.

Benjamin

The search

produced six firearms and numerous rounds of ammunition.

Three

of the firearms were loaded.

On May 2, 2010, Mudlock, who remained in jail, telephoned
Justin Herr to ask that Herr remove three fishing poles from
Mudlocks home.

When Herr went to the home, however, he found

firearms in place of the purported fishing poles.

ammunition.

He also found

Herr informed ATF Special Agent Paul Johnson of his

discovery.
Johnson

subsequently

Mudlocks home.

obtained

another

search

warrant

for

He executed the search warrant on May 6, 2010.

During the search, he located and seized three firearms in an

open

gun

safe

in

Mudlocks

bedroom

closet

and

approximately

4,000 rounds of ammunition.

At

the

sentencing

hearing,

ATF

Special

Agent

David

M.

Schauble, who also participated in the May 6, 2010, search and

took

pictures

of

the

scene,

testified
3

about

what

he

had

observed.

During this testimony, he spoke about a photograph

that he took of a high-capacity magazine that accepted more than

fifteen rounds of ammunition.

According to Schauble, officers

found the magazine in a dresser that was two or three steps from
the open gun safe where they located the three guns, one of
which was capable of accepting the magazine.
During all relevant time periods, Mudlock was subject to a
domestic
possessing

restraining

order

firearms.

The

that

barred

restraining

him
order

from

lawfully

provided

that

Mudlock received actual notice of the hearing; that [Mudlock]

had an opportunity to participate in the hearing; and that he
was restrained from committing further acts of abuse, domestic
abuse, stalking or sexual assault or threats of abuse, stalking
or sexual assault against his wife or her minor children.
also

stated

that

Mudlock

had

made

general

It

appearance

. . . and ha[d] submitted himself to the jurisdiction of [the

court.]

The order further announced that Mudlock represents a

credible threat to the physical safety of [Ms. Mudlock].

And,

it required that Mudlock terminate [his] physical possession of

the firearms [in his possession] by any lawful means.

The

order states that, barring a continuation, it would be in effect

for one year.

Mudlock signed the order on August 18, 2009.

B.
The

grand

jury

indicted

Mudlock

on

March

30,

2010,

for

possession of firearms while subject to a restraining order, in

violation

of

18

U.S.C.

922(g)(8)

and

924(a)(2).

Mudlock

subsequently filed a motion to dismiss the indictment, arguing

that 922(g)(8) was unconstitutional as applied to him.

The

district court denied the motion.

A jury trial commenced on July 1, 2010.

On July 2, 2010,

the jury returned a verdict of guilty as charged.

On September

13, 2010, Mudlock filed a motion seeking substitute counsel.

The district court held a sentencing hearing on November 17,
2010, at which time it denied Mudlocks motion.
sentenced him to 42 months imprisonment.

It subsequently

Mudlock thereafter

filed this timely appeal.

II.
First,

Mudlock

argues

that

the

district

court

erred

in

denying his motion to dismiss the 18 U.S.C. 922(g)(8) charge

because, as applied to him, this statute infringes on his Second
Amendment rights.

We review this question de novo.

United

States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001).

Section 922(g)(8) forbids those persons who are subject to
an

active

firearms

domestic
or

violence

ammunition

protection

while
5

the

order
order

from
is

possessing
in

effect.

Specifically, the statute makes it unlawful for any person under

a court order that
(A) was issued after a hearing of which such person
received actual notice, and at which such person had
an opportunity to participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or
child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or
child; and
(C)(i) includes a finding that such person represents
a credible threat to the physical safety of such
intimate partner or child; or
(ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury;
* * * *
to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. 922(g)(8).
The Supreme Court determined in District of Columbia v.
Heller, 554 U.S. 570 (2008), that the Second Amendment protects
the individual right of law-abiding, responsible citizens to
use arms in defense of hearth and home.

Id. at 635.

But the

Court made clear that the right is not unlimited and listed
presumptively lawful restrictions, including the prohibition on
the possession of firearms by felons and the mentally ill, as
6

well as the carrying of weapons in certain places.

Id. at 626-

27.
Our review of Mudlocks constitutional challenge entails a
two-step inquiry.

United States v. Chester, 628 F.3d 673, 680

(4th Cir. 2010).

First, we must determine whether 922(g)(8)

infringes

on

Amendments

conduct

within

guarantee,

understood.

as

the

that

purview

right

has

of
been

the

Second

historically

United States v. Chapman, 666 F.3d 220, 225 (4th

Cir. 2012) (citing Chester, 628 F.3d at 680).

If the answer to

this question is no, that is the end of the matter.

If the

answer is yes, then we move on to consider the second part of

the

two-part

approach,

which

involves

appropriate form of means-end scrutiny.

application

of

the

Id. (citation omitted)

(citing Chester, 628 F.3d at 680).

For

purposes

of

this

appeal,

we

assume

that

Mudlocks

conduct falls within the purview of the Second Amendment.

we focus of the second step of the inquiry.

Thus,

And in doing so, we

must first determine the appropriate level of scrutiny.

Like that of the defendant in Chapman, Mudlocks claim is
not within the core right identified in Hellerthe right of a
law-abiding, responsible citizen to possess and carry a weapon
for self-defense.

Id. at 226 (emphasis omitted).

This is so

because we are hard-pressed to think of an instance in which a

responsible

citizen

would

be

(1)
7

restrained

from

committing

further

acts

of

abuse,

domestic

abuse,

stalking

or

sexual

assault or threats of abuse, stalking or sexual assault against

another or (2) adjudged to represent[] a credible threat to the
physical safety of [another].

Moreover, in view of Mudlocks

statement to the 911 dispatcher stating that he would shoot any

law enforcement officer who approached his house, it can hardly
be said that Mudlock is law-abiding.

Accordingly, we conclude

that

appropriate

intermediate

scrutiny

is

the

standard

scrutiny for [Mudlock] and similarly situated persons.

We

have

previously

held

in

considering

of

Id.

constitutional

challenge to 922(g)(8) that the statute serves the substantial

government
that

there

objective.

objective
is

of

reducing

reasonable

fit

domestic

gun

violence

between

the

law

and

and
this

United States v. Mahin, 668 F.3d 119, 124-25 (4th

Cir. 2012) (internal quotation marks omitted).

Specifically we

have held that the government has established the following:

(1) domestic violence is a serious problem in the
United States; (2) the rate of recidivism among
domestic violence misdemeanants is substantial; (3)
the use of firearms in connection with domestic
violence is all too common; (4) the use of firearms in
connection with domestic violence increases the risk
of injury or homicide during a domestic violence
incident; and (5) the use of firearms in connection
with domestic violence often leads to injury or
homicide.
Chapman, 666 F.3d at 229.

We have reviewed the record and find nothing that would

render the application of the statute unconstitutional in this
case.

As the district court found, 922(g)(8) provides for a

time-limited

restriction,

which

restraining order is in effect.

is

applicable

only

while

the

It also requires that specific

procedural safeguards be present at the restraining order stage

before

that

order

can

trigger

the

firearm

restriction.

The

forbidden conduct entails serious or other conduct that would

cause reasonable fear of bodily injury.

Lastly, the statute

requires that the restraining order contain a finding that the

defendant

has

been

adjudged

to

be

specific

and

credible

threat to the physical safety of another or that it explicitly

prohibit
would

the

reasonably

922(g)(8).
of

use

these

of

force

be

or

expected

threatened

to

cause

force

bodily

that

injury.

In that we agree with the district court that all

factors

are

present

in

this

case,

we

adopt

the

reasoning of the district court.

Consequently,
reasonable
governmental

fit

in

that

between

objective

of

we

have

found

922(g)(8)

reducing

and

domestic

that
the
gun

there

is

substantial
violence,

we

affirm the district courts decision to deny Mudlocks motion to

dismiss.

III.
Next, Mudlock contends that the district court erred in
sentencing him based upon an incorrect base offense level.
We review sentences for reasonableness under an abuse-ofdiscretion standard.
(2007).

Gall v. United States, 552 U.S. 38, 51

Pursuant to this review, we must consider both the

procedural and substantive reasonableness of a sentence.

Id.;

see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010).

Properly

preserved

claims

subject to harmless-error review.

of

procedural

error

are

Lynn, 592 F.3d at 576.

If

the sentence is free of significant procedural error, we then

review the substantive reasonableness of the sentence.

Id. at

575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
When judging the reasonableness of a sentence, we review the
district

courts

legal

conclusions

findings for clear error.

de

novo

and

its

factual

United States v. Hampton, 441 F.3d

284, 287 (4th Cir. 2006).

Pursuant

to

U.S.S.G.

2K2.1(a)(4)(B),

offense level was set at twenty.

Mudlocks

base

For this guideline to apply,

it requires, among other things, that the offense involved a

semiautomatic
capacity

firearm

magazine.

that
Id.

is

capable

The

of

accepting

application

notes

guideline define this term to include the following:

10

a
to

large
this

a semiautomatic firearm that has the ability to fire

many rounds without reloading because at the time of
the offense (A) the firearm had attached to it a
magazine or similar device that could accept more than
15 rounds of ammunition; or (B) a magazine or similar
device that could accept more than 15 rounds of
ammunition was in close proximity to the firearm.
Id. 2K2.1 cmt. n.2.
Mudlock

first

argues

that

the

district

court

erred

in

concluding that he possessed a firearm capable of accepting a

large

capacity

magazine

and

that

the

magazine

was

in

close

proximity to the firearm on January 10, 2010, the date of the

alleged offense.

But our review of the record shows that the

evidence does not comport with these contentions.

At

the

sentencing

hearing,

Agent

Schauble

testified

follows:
Q:

A:
Q:
A:

Q:

A:

Agent Schauble, do you know if what is described

as a high capacity magazine was seized from the
residence that day?
Yes, maam.
Could you explain to the Court what a high
capacity magazine is exactly?
Its a magazine that will fitcan carry more than
15 rounds.
In this particular case, that
magazine would carry 30 rounds.
And you actually saw that magazine yourself and
have determined that it will accommodate more
than 15 rounds of ammunition?
Yes, maam.

* * * *
Q.
A:

And there are twoactually two firearms in this

photograph. Which is which in the photograph?
Theres actually three firearms.
Theres an SKS
7.62 by 39 here, which is a double-barreled
shotgun. To the left of the gunin the left-hand
11

as

corner of the gun safe, and theres another rifle

in the right-hand corner of the gun safe.
* * * *
Q:
A:

All right. And Governments No. 5?

That is the magazine for the SKS that was found
in the top dresstop right-hand dresser drawer in
the bedroom.

* * * *
Q:

And
had
gun
Two

A:

proximity wise, how many steps would you have

to have taken from the dresser to get to the
safe?
or three.

* * * *
Q:
A:

Would you estimate thats about 10 feet?

Yes, sir, six to eightsix to 10 feet.

Given this undisputed testimony, we cannot say that the

district

court

erred

in

finding

that

Mudlock

possessed

firearm, in this instance an SKS, capable of accepting a large

capacity

magazine

and

that

such

magazine

was

in

close

proximity to the firearm at the time of the alleged offense.

Hence, Mudlocks claim to the contrary fails.
Second, Mudlock claims that the ban on firearms capable of
accepting

large

capacity

magazines

has

been

repealed.

Therefore, according to Mudlock, the increased punishment under

the Sentencing Guidelines for possession of such a firearm is
unreasonable.
decided

that

But we have already considered this issue and

the

repeal

of

the

assault-weapon

operate as a repeal of the 2005 enhancement.

12

ban

did

not

United States v.

Myers, 553 F.3d 328, 330 (4th Cir. 2009).

Accordingly, this

claim must fail as well.

IV.
Mudlock also maintains that the district court committed
reversible error in its refusal to allow him to present evidence
concerning

the

Tennessee

court

imposition of the restraining order.

hearing

that

led

to

the

Our review of the district

courts admission of evidence is for an abuse of discretion.

United States v. Wilson, 624 F.3d 640, 649 (4th Cir. 2010).
[T]he overwhelming weight of federal case law precludes a
defendant

in

collateral

attack

922(g)(8)
on

the

prosecution

merits

of

from

the

mounting

underlying

state

protective order.

United States v. Reese, 627 F.3d 792, 804

(10th Cir. 2010).

In fact, the Fifth Circuit has noted that

nothing in the language of 18 U.S.C. 922(g)(8) indicates that

it applies only to persons subject to a valid, as opposed to an
invalid, protective order.
514, 535 (5th Cir. 2004).
have

not

approach.

found,

any

United States v. Hicks, 389 F.3d

Mudlock has not presented, and we

reason

to

diverge

from

the

majority

As such, we find no error in the district courts

disallowance

of

any

evidence

concerning

hearing.

13

the

Tennessee

court

V.
According

to

Mudlock,

the

district

court

also

erred

in

admitting certain evidence at his trial that was not charged in

the indictment and was irrelevant to the charges contained in
the indictment.

Specifically, Mudlock objects to the district

courts admission of (1) evidence concerning his request to Herr

that Herr remove firearms from Mudlocks home and (2) evidence
regarding his attempt to grab one of the officers guns.

As

noted

of

above,

we

review

the

district

evidence for abuse of discretion.

courts

admission

Wilson, 624 F.3d at 649.

At trial, the government was required to prove beyond a

reasonable

doubt

that

See 924(a)(2).
statements

and

Mudlock

knowingly

possessed

firearms.

And, as the district court observed, Mudlocks

conduct

that

reflect

his

knowledge

of

the

firearms that were present in his home and, to a certain degree,

his

control

of

those

firearms,

including

Herr, relate to his knowing possession.

his

statements

to

Therefore, we hold

that this evidence was admitted as to acts intrinsic to the

crime charged, and . . . not admitted solely to demonstrate bad
character.

United States v. Chin, 83 F.3d 83, 88 (4th Cir.

1996) (citing United States v. Allen, 960 F.2d 1055, 1058 (D.C.
Cir. 1992)).

Moreover, to assure that the jury did not consider

the

for

evidence

anything

but

14

Mudlocks

state

of

mind,

the

district court gave a limiting instruction to the jury.

the district court properly admitted this evidence.
Mudlocks
admission

of

assignment
evidence

of

error

concerning

officers gun fares no better.

to

the

Mudlocks

Thus,

See id.

district

courts

grabbing

of

an

The district court noted, I

think here this is some evidence of a knowing possession of

firearms, . . . continued even after he was placed into custody.
. . . I think its part of the transaction, and I also think
its probative of that knowledge and intent on his part.
ameliorate

any

unfair

prejudice,

the

district

limiting instruction as to this evidence as well.

court

gave

To
a

Accordingly,

we find no abuse of discretion.

VI.
Finally, Mudlock states that the district court erred in
refusing to appoint substitute counsel prior to his sentencing.
Our

review

of

district

courts

decision

substitute counsel is for abuse of discretion.

on

motion

to

United States v.

Reevey, 364 F.3d 151, 156 (4th Cir. 2004).

It

is

axiomatic

that

Amendment right to counsel.

343-45 (1963).

an

indigent

defendant

has

Sixth

Gideon v. Wainwright, 372 U.S. 335,

But the exercise of this right cannot deprive

courts of the exercise of their inherent power to control the

administration of justice.

United States v. Perez, 661 F.3d

15

189, 191 (4th Cir. 2011) (quoting United States v. Gallop, 838
F.2d 105, 108 (4th Cir. 1988)).

Thus, an indigent defendant is

entitled to substitute appointed counsel only for good reason.

Id.
Our review of denial-of-substitution claims has focused on
three

inquiries:

(1)

the

timeliness

of

the

motion;

(2)

the

adequacy of the courts subsequent inquiry; and (3) whether the

attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense.
United

States

v.

Smith,

640

F.3d

(quoting Gallop, 838 F.2d at 108).

Mudlocks

motion

was

timely.

580,

588

(4th

Cir.

2011)

There is no dispute that

Therefore,

we

consider

only

factors two and three.

As

to

the

adequacy-of-the-inquiry

prong,

according

to

Mudlock, the district court failed adequately to inquire into or

consider

the

following

alleged

shortcomings
documentation

counsels

failure

to

obtain

Tennessee

proceedings,

despite

Mudlocks

of

his

counsel:

regarding

request;

the

counsels

failure to review Mudlocks objections to the Presentence Report

with him; counsels instruction to Mudlock that he should write
directly to the probation office regarding his objections; and
counsels failure to accept or return Mudlocks telephone calls.
Contrary to Mudlocks contention, the record shows the district

16

court

made

an

extensive

inquiry

into

Mudlocks

complaints.

There was more than sufficient discussion to satisfy this prong.

All said, from our review of the record, it appears that
Mudlocks

chief

complaint

about

his

counsel

concerns

the

validity of the restraining order and the gun enhancement.

as

discussed

above,

Mudlocks

restraining order lack merit.

arguments

But,

regarding

the

And we have never held that an

attorney who declines to make unmeritorious claims demanded by a

client risks being replaced.
regarding

the

gun

properly rejected.

Mudlocks counsel made arguments

enhancement,

which

the

district

court

Thus, as the district court observed, I

dont see that theres any reason to believe that it [would have
been] any better by substituting counsel.
Concerning the communication prong, Mudlock complains that
there was a complete breakdown of communication between him and
his

counsel

otherwise.

and

that

the

district

court

erred

in

holding

Mudlock states that he detailed for the district

court the alleged unacceptable length of time that his counsel

failed to communicate with him.
even

when

he

was

able

to

Moreover, Mudlock avows that,

communicate

with

his

counsel,

his

counsel failed to take action on his behalf or explain to him

the

reason

action.

or

reasons

Instead,

that

according

he
to

could

not

Mudlock,

take
his

instructed him to contact court officials himself.

17

the

requested

counsel

merely

The district court aptly summarized the record before us,

however,

by

stating

that

Mudlock

and

his

counsel

had

been

discussing the case, but there [was] disagreement over what

constitutes a meritorious objection and what doesnt.

In light

of the fact that these discussions were occurring, we are unable

to say that there was a total breakdown of communication.
Accordingly,

the

district

court

did

not

abuse

its

discretion in refusing to appoint substitute counsel prior to

sentencing.

VII.
Wherefore,

for

the

reasons

stated

above,

Mudlocks

conviction and sentence are

AFFIRMED.

18